Mane v The Queen
[2017] NZCA 543
•24 November 2017 at 3 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA509/2017 [2017] NZCA 543 |
| BETWEEN | DRE KANE MANE |
| AND | THE QUEEN |
| Hearing: | 6 November 2017 |
Court: | Gilbert, Lang and Ellis JJ |
Counsel: | Q Duff for Appellant |
Judgment: | 24 November 2017 at 3 pm |
JUDGMENT OF THE COURT
AThe appeal against sentence is allowed.
B The concurrent sentences of six years imprisonment on the charges of aggravated burglary and possession of methamphetamine for supply are set aside.
CA sentence of three years four months imprisonment is substituted on the charge of aggravated burglary and a cumulative sentence of two years eight months is substituted on the charge of possession of methamphetamine for supply.
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REASONS OF THE COURT
(Given by Lang J)
Mr Mane pleaded guilty in the District Court at Papakura to a charge of aggravated burglary and a charge of being in possession of methamphetamine for the purpose of supply. On 8 May 2017 Judge Andrée Wiltens sentenced Mr Mane to concurrent sentences of six years imprisonment on each charge.[1]
[1]R v Mani [2017] NZDC 9403 at [11].
Mr Mane appeals against sentence on the basis that the Judge adopted starting points that were too high on each charge and failed to provide adequate discounts for mitigating factors. These errors resulted in an end sentence that was manifestly excessive.
The charges
The charge of aggravated burglary was laid as a result of an incident that occurred at about 9 pm on the evening of 30 November 2015. The summary of facts that Mr Mane accepted for sentencing purposes records that he and three others met up on that evening and decided to pay a visit to the victim. They were apparently under the false impression that he owed them drugs. The defendants then assembled some weapons, including a baseball bat. They then drove to the victim’s home. Mr Mane was in possession of the baseball bat.
When the victim opened the door, one of Mr Mane’s co-defendants confronted him and told him to step outside. The victim then retreated inside the address but Mr Mane and his associates followed him in. Once inside, one of Mr Mane’s associates punched the victim in the nose, causing it to bleed. Mr Mane then swung his baseball bat at another occupant of the address, striking him twice on the upper arm.
The confrontation caused the occupants of the address to attempt to hide from Mr Mane and his associates. The defendants then made one of the occupants take them upstairs to the victim’s bedroom. They searched the room seeking items to steal, and eventually left the address with the victim’s wallet.
The charge of being in possession of methamphetamine for supply was laid as a result of a search that the police carried out of Mr Mane’s address on the evening of 13 July 2016. When the police entered the address, they observed a set of scales sitting on a coffee table. Sitting on the scales were two point bags containing a crystalline substance. The police then invoked their powers of warrantless search under the Search and Surveillance Act 2012.
As a result of the ensuing search the police found a bag containing 18.45 grams of methamphetamine. This was rolled up inside a sealable bag on a couch beside the coffee table. The police also found three cellphones, numerous empty point bags and cash totalling $727.70. They also found what appeared to be a “tick book” containing details of drug-related transactions.
The sentencing decision
Judge Andrée Wiltens sentenced Mr Mane and two of his co-defendants (in relation to the aggravated burglary) at the same time. He began by selecting a universal starting point of five years imprisonment in respect of the charge of aggravated burglary.[2] In doing so he adopted the starting point selected by the Judge who had earlier sentenced the fourth member of Mr Mane’s group. Judge Andrée Wiltens considered that a starting point of five years imprisonment was justified having regard to the planning and premeditation involved in the offending, the fact that it involved a home invasion by four people, the presence and use of a weapon, and the threatened and actual use of violence. The offending also caused moderate injuries to two of the occupants of the address and it resulted in the victim’s wallet being stolen.
[2]At [4]–[5].
The Judge reduced the starting point by five months to reflect the fact that Mr Mane was just 21 years of age at the time of the offending.[3] He then reduced the sentence by a further five months to reflect that the guilty plea had spared the witnesses the ordeal of giving evidence at trial. The Judge applied a reduction of 10 months, or 20 per cent, to reflect the relatively late guilty plea. This produced an end sentence of three years four months imprisonment on the aggravated burglary charge.
[3]At [9].
The Judge then considered the sentence to be imposed on the charge of being in possession of methamphetamine for supply. He noted that ordinarily the starting point for that charge would be around four years six months imprisonment, and that an uplift of three months would be appropriate to reflect the fact that the offending had occurred whilst Mr Mane was on bail in respect of the aggravated burglary charge.[4] He then applied a reduction of approximately 15 per cent to reflect a late guilty plea, resulting in an end sentence of four years two months imprisonment on the possession charge.
[4]At [10].
Given that this sentence was to be cumulative on the other sentence, the Judge had regard to totality principles. He considered that a sentence of seven years six months imprisonment was disproportionate to the overall gravity of Mr Mane’s offending. For that reason he reduced the end sentence to six years imprisonment.[5] He then imposed concurrent sentences of six years imprisonment on each charge.
The appeal
[5]At [11].
For Mr Mane, Mr Duff submitted that the Judge was correct to ultimately impose concurrent end sentences, but says that he was wrong to adopt a reasoning process that involved the imposition of cumulative sentences in respect of the two charges. Mr Duff also challenged the starting point selected in respect of each charge, and submitted that further discounts should have been given to reflect factors such as remorse and the time spent by Mr Mane on restrictive bail conditions prior to sentencing. Furthermore, he points out that the Judge failed to provide Mr Mane with a discount for youth on the methamphetamine charge, and that he should have applied a discount for the guilty plea of 20 per cent rather than 15 per cent on that charge. The Crown and defence had apparently agreed to a discount for guilty pleas at that level prior to sentencing.
Mr Duff submitted that on the methamphetamine charge the Judge ought to have adopted a starting point of three years six months, uplifted this by one month for offending while on bail, and then applied discounts of five months for youth, three months for time spent on electronically monitored bail and seven months for the guilty plea (20 per cent). He submits that an uplift of 12 months would then have been appropriate to reflect the separate offending of aggravated burglary. This would result in an end sentence of three years four months. He submits that a concurrent sentence of one year 10 months would have been appropriate for the aggravated burglary charge.
Alternatively, Mr Duff submitted that even if the court were to adopt a global starting point of five years and only allow a youth discount of five months (as given by the Judge), the discount to reflect guilty pleas should have been 11 months (20 per cent). This would produce an end sentence of three years eight months imprisonment.
Decision
We begin by observing that the Judge was entirely correct to proceed on the basis that the two charges justified the imposition of cumulative sentences. The events giving rise to the charges were different in kind, and they were unconnected in time, place or circumstance. For that reason cumulative sentences were appropriate.[6]
[6]Sentencing Act 2002, s 84(1).
We do not consider it necessary to deal separately with each of the points made by Mr Duff on Mr Mane’s behalf. Rather, we consider that the appeal should be determined by considering whether the effective end sentence of six years imprisonment was within the available range having regard to totality principles.
We also consider the global starting point suggested by Mr Duff to be inadequate to reflect the overall seriousness of Mr Mane’s offending. An end sentence of just three years eight months imprisonment would likewise be insufficient to reflect that fact notwithstanding Mr Mane’s relative youth and other mitigating factors.
Both offences were serious. We consider that a starting point of around five years imprisonment was within the available range in respect of the aggravated burglary charge having regard to all the aggravating features that the Judge identified. A starting point of around four to four and a half years imprisonment was also within the available range in respect of the methamphetamine charge. That offending involved the possession of more than 18 grams of methamphetamine for supply. The other items found in Mr Mane’s possession also suggest that he was a reasonably busy seller of methamphetamine at street level. As a result, his offending fell within the lower end of Band 2 identified in R v Fatu, for which a starting point of three to nine years imprisonment will generally be appropriate.[7] The quantity involved and likely level of activity would call for a starting point greater than that appropriate for offending at the bottom end of the range.
[7]R v Fatu [2006] 2 NZLR 72 (CA) at [34].
Mr Duff’s remaining arguments are answered in our view by the level of the reduction applied by the Judge to reflect totality principles. A reduction of 18 months on top of those applied earlier in respect of mitigating factors brought the end sentence down, in our view, to a level that was within the available range to reflect the seriousness of both forms of offending. For that reason we have concluded the Judge did not impose an effective end sentence that was manifestly excessive.
Disposition
This conclusion would ordinarily be sufficient to dispose of the appeal. In the present case, however, we consider that the Judge ought to have imposed cumulative sentences to reflect his reasoning process. Concurrent sentences of six years imprisonment are not appropriate because neither offence justified an end sentence of that length. Furthermore, the sentences as they currently stand may operate unfairly to Mr Mane’s detriment if the courts are required to have regard to his criminal history in the future. For that reason we propose to adjust the sentences so that they align with the Judge’s reasoning whilst preserving the same end result.
Result
The appeal is allowed. The concurrent sentences of six years imprisonment are set aside. In their place a sentence of three years four months imprisonment is substituted on the charge of aggravated burglary and a cumulative sentence of two years eight months imprisonment is imposed on the charge of possession of methamphetamine for supply.
Solicitors:
Richmond Property & Litigation Ltd, Auckland for Appellant
Crown Law Office, Wellington for Respondent
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